Saturday, December 30, 2017

Countless state and local government bodies have taken
action in response to the opioid crisis. However, the death toll continues to
rise. The New York Times estimated that 59,000 people died of drug overdoses in
2016, and based on projections by the Centers for Disease Control for 2017, an
estimated 66,000 people will die of drug overdoses.

Data for this year is still incomplete because of the time
it takes to conduct death and toxicology investigations. However, Bob Anderson,
chief of the mortality statistics branch at the National Center for Health
Statistics says the 2017 estimates are alarming. “The fact that the data is
incomplete and they represent an increase is concerning,” he said.

“Our current addiction crisis and especially the epidemic of
opioid deaths will get worse before it gets better,” President Donald Trump
said as he formally declared the crisis a public health emergency in October.

One effort to tackle the nation’s exploding opioid crisis is
legislative action to impose lighter sentences for drug offenders. The Justice
Reinvestment Initiative—implemented in more than half of the states—has been
praised as a forward-thinking solution to a host of criminal justice problems,
including the overcrowding of prisons and jails.

Reducing sentences for drug offenders opens prison beds for
violent offenders and others the court deems likely to commit major crimes.
Fewer inmates means lower prison costs, freeing up state dollars to reinvest in
treatment programs and other long-term solutions to criminal activity.

However, the unforeseen consequence of lighter sentences is
a nationwide drop in enrollment of highly successful drug courts.

Drug court is a minimum 12-month intensive, court-supervised
program. Drug-dependent offenders are enrolled in drug courts in lieu of
traditional justice system case processing. According to the National Association
of Drug Court Professionals, drug court participants are provided with
treatment services that help them get sober, and stay sober.

Participants are held accountable by the drug court through
regular drug testing; frequent court appearances to enable the judge to review
progress; and rewards for doing well or sanctions when not complying.

Researchers in a number of studies found that drug courts
reduced recidivism. According to the National Institute of Justice, one study
found that within a two-year period, the felony re-arrest rate decreased from
40 percent before the drug court to 12-percent after the drug court started in
one county, and the felony re-arrest rate decreased from 50-percent to
35-percent in another county.

Few policymakers saw that removing the threat of a felony
conviction—and a lengthy sentence—would inadvertently reduce the incentive for
offenders to choose to participate in drug court.

According to Governing Magazine, drug court was an
attractive alternative for someone facing a five-year sentence and a felony
conviction on their record. Now according to Brent Kelsey, assistant director
of the Utah Division of Substance Abuse and Mental Health, when the potential
penalty is a few days or months in jail, drug offenders are less likely to
enroll in a 12-month drug court.

In November 2014, California passed Proposition 47, The Safe
Neighborhoods and Schools Act. The voter-approved referendum reduced penalties
for drug possession and other non-violent felonies, including commercial burglary,
forgery, grand theft and possession of a controlled substance.

San Bernardino County (CA) District Attorney Michael A.
Ramos said that without the bargaining chip of lowering felonies to
misdemeanors, Proposition 47 has erased any incentive to compel defendants into
drug court.

“Our drug court’s basically non-existent,” Ramos told the
Victorville Daily Press. The evidence is clear that drug courts have a positive
impact. Will the same be true for reforms driven by Justice Reinvestment
Initiatives?

Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.

Friday, December 29, 2017

Here is a “heartwarming” holiday story out of sunny Florida. Authorities released a 94-year-old woman from
jail after police arrested her for allegedly not paying rent at the senior
housing community where she had lived since 2011, reported Huffington Post.

Wheelchair bound Juanita Fitzgerald spent her 94th
birthday on Friday in a motel room, The Orlando Sentinel reports. The day before, she had
been released from Florida’s Lake County Jail, which is where police took her
after she was evicted from her home at the National Church Residences’ Franklin House in Eustis,
FL. The facility accused her of refusing to leave.

Bodycam footage from the arrest showed her screaming
and sliding to the ground in an apparent attempt to avoid being taken away.
A police report obtained by The Miami Herald noted that
Fitzgerald had told officers, “Unless you carry me out of here, I’m not going
anywhere.”

While some headlines described Fitzgerald as being
“handcuffed,” the police report stated that she was transported to jail without
handcuffs because of her age. However, Fitzgerald showed the Sentinel bruises
and scratches on her ankles that she said were from prison shackles. A jail
spokeswoman told the site that it was typical for inmates to wear restraints,
but could not confirm anything specifically about Fitzgerald’s case.

Thursday, December 28, 2017

It would have seemed unbelievable in 1990, when there were
2,245 killings in New York City, but as of Wednesday there have been just 286
in the city this year — the lowest since reliable records have been kept, says the
New York Times. Reported crime has fallen this year in New York City in
each of the major felony categories — murder and manslaughter, rape, assault,
robbery, burglary, grand larceny, and car thefts — to a total of 94,806 as of
Sunday, well below the record low of 101,716 set last year. If the trend holds
a few more days, this year’s homicide total will be less than the city’s
previous low of 333 in 2014, and crime will have declined for 27 straight
years, to levels that police officials have said are the lowest since the
1950s.

The numbers, according to The Crime Report, when taken together, portray a city of 8.5
million people growing safer even as the police, under Mayor Bill de Blasio,
use less deadly force, make fewer arrests and scale back controversial
practices like stopping and frisking thousands of people on the streets.
Franklin E. Zimring, a law professor at Cal-Berkeley, said the downturn was an
“astounding achievement,” but it raised another question: How long and low will
crime fall? “We don’t know when we’ve exhausted the possibilities of urban crime
decline, and we won’t know unless and until New York scrapes bottom,” said
Zimring.

Wednesday, December 27, 2017

Over the course of the past week, Attorney General Jeff Sessions has revoked a
total of 25 Obama-era Department of Justice (DOJ) guidelines, reported Jurist. Among them was
a 2016
guideline that advised local courts to not hand down or enforce
unnecessary and excessive fines on those without the means to pay them.

In 2016, the DOJ released
a report on its investigation into excessive fine enforcement in
Ferguson, Missouri. The report found that:

The municipal court does not act as a neutral arbiter of the
law or a check on unlawful police conduct. Instead, the court primarily uses
its judicial authority as the means to compel the payment of fines and fees
that advance the City's financial interests. This has led to court practices
that violate the Fourteenth Amendments due process and equal protection requirements.

Since taking over the DOJ, Sessions has disapproved of using
guideline protocols to drive policy. In a November
memo, Sessions stated that:

the Department has in the past published guidance
documents—or similar instruments of future effect by other names, such as
letters to regulated entities—that effectively bind private parties without
undergoing the rulemaking process. The Department will no longer engage in this
practice. Effective immediately, Department components may not issue guidance
documents that purport to create rights or obligations binding on persons or
entities . . .

Following the release of the November memo, the DOJ has been
undergoing a "review and repeal" process to rescind any guidelines
that run counter to this belief.

Tuesday, December 26, 2017

Drug overdoses killed 4,329 Ohioans in 2016, the
second-highest death rate in the nation, reported The Crime Report. That’s up 24 percent over the 3,310
drug deaths the previous year, according to a report released Thursday by the
federal government, reports
the Columbus Dispatch. Despite increased government spending, Ohio’s
rate of drug-overdose deaths, 39.1 per 100,000 people, trailed only West Virginia’s
52 per 100,000 population.

The powerful and deadly synthetic opioid fentanyl is
largely to blame for the exploding number of deaths, according the National
Centers for Health Statistics. “We’ve got a big problem in Ohio,” said Dublin
Police Chief Heinz von Eckartsberg. First responders in Dublin had to use two
doses of the drug antidote naloxone to revive a 20-year-old man earlier this
week and 11 doses to revive another man last month, suggesting they’d taken
fentanyl. Statewide, emergency responders have administered more than 43,000
doses of naloxone this year, up from 31,800 in all of 2016.

Monday, December 25, 2017

The annual Santa Claus parade in Kingston, Ontario,
does not normally feature any type of Grinch character. But the Canadian town’s
longtime tradition was once obstructed by one, who decided to go around
telling all the young children in attendance that Santa Claus is not real.
According to the Toronto Star, the man was arrested by police for spilling the beans in a disturbing
manner, and was also charged with public intoxication and a probation
violation.

The parade is typically a joyous occasion marked by festive lights, floats, and of
course an appearance by Santa Claus himself. But things turned sour when an
unidentified man began roaming Princess Street around 6:00 pm, telling all the
children that the bearded icon is a fraud. Reports indicate that the man had
also slicked his hair back with gel into the shape of devil horns, which
disturbed quite a few people in attendance.

After a parade attendee called the police out of
concern, officers arrived on the scene and apprehended the man, who was
immediately charged with causing a disturbance. It turned out that the man had
also been drinking and was in violation of his probation, two additional
charges which were tacked onto the arrest.

“It was pretty despicable that someone, during this
time of the year, would tell kids Santa isn’t real — which
of course we would argue,” said Constable Steve Coopman from the Kingston
Police Force to reporters about the incident. “He was disturbing everyone there
on the thoroughfare, he was disturbing the families, obviously disturbing
the children.”

Sunday, December 24, 2017

Anyone who’s watched a cop show on television in
recent decades has a decent understanding -- or at least a memory -- of the
rights accorded to those arrested: the right to an attorney, the right to
remain silent and all the other protections given to the accused over the past
half-century, following the U.S. Supreme Court’s 1966 decision in Miranda v.
Arizona.

But juvenile offenders often don’t have a clear
understanding of what those rights entail, reported Governing. Back in 2013, the American Academy
of Child and Adolescent Psychiatry concluded that Miranda warnings are “too
complex and advanced” for most juveniles. The group recommended that “police
and other law enforcement authorities should utilize simplified Miranda
warnings developed specifically for use with juvenile suspects.”

Now, the sheriff’s office in King County, Wash., has
done just that. Working collaboratively with the public defender’s office and a
community nonprofit, the sheriff consulted with brain researchers to come up
with simplified warnings, which were then focus-grouped among teens. “For the
most part, we have always done the same warning for kids that we do for
adults,” says Sheriff John Urquhart. “We came to the conclusion, as we know
now, that kids’ brains develop slower. To be fair, we thought we should revise
the warning so that they understand what their constitutional rights are.”

Juvenile offenders in King County are now told
repeatedly, and in different phrases, that they have a right to an attorney,
underscoring that the attorney’s services are available free of charge. They not
only are told that they can remain silent, but are offered an explanation that
this means “you don’t have to say anything. It’s OK if you don’t want to talk
to me.”

Urquhart says he’s getting the same kind of pushback
that law enforcement has gotten ever since the advent of Miranda warnings --
namely, that no kid will ever confess with those kinds of protections. The new
warnings are just being rolled out, but so far there’s no evidence that they’re
hindering cases. The Seattle Police Department -- the only force in the state
larger than the King County Sheriff’s Office -- is now considering adopting
them as well.

Laurence Steinberg, an expert on adolescent
psychiatry at Temple University, describes the warnings as a “valuable change
in policy.” Nevertheless, he argues that even if kids have a better grasp of
their rights, they generally lack the judgment or foresight to think through
the implications of the decisions they make, including whether to stay silent.
Like the American Academy of Child and Adolescent Psychiatry, he recommends
that an adult who cares about the child’s welfare, such as an attorney or a
relative, should be present during interrogations. That’s already standard
practice in many departments.

Saturday, December 23, 2017

If you’re looking for an interesting escape during
the holiday season, check out my top-five courtroom noir movies. The golden age
of film noir was the 1940s and 1950s, however there was a five-year stretch
between 1957 and 1962 that produced some the most entertaining courtroom noir
dramas of all time.

Let’s start with “Witness for the Prosecution,”
released in 1957 and based on a play by Agatha Christie. The film adaptation
starred Charles Laughton and Marlene Dietrich. Laughton plays Sir Wilfred
Robarts, an aging barrister — white wig and all — in the Old Bailey, the
British criminal court.

Robarts takes on Leonard Vole as a client, accused
of murdering a rich widow who was smitten enough with him to make him a gift in
her will.

Vole’s wife, played by Dietrich, is called as a
witness for the prosecution. While a wife cannot be compelled to testify
against her husband, her conscience forced her to tell the court Vole killed
the old widow.

A mystery woman later emerges, Vole’s wife is
recalled to the witness stand and another murder occurs in open court — I’ve already
told you too much.

Also in 1957, “Twelve Angry Men” was released by
Orion-Nova Productions. The movie starred Henry Fonda with and ensemble cast
that included many familiar faces. The movie takes place almost exclusively in
a jury deliberation room, while 12 men-that’s right, no women — deliberate the
fate of a young man accused of stabbing his father to death.

Lee J. Cobb and Ed Begley are marvelous as each of
the 12 men in a sweltering, smoke-filled room reveal their prejudices, biases
and inner-demons. Director Sydney Lament did wonders with one room, 12 men and
no props.

In 1959 Jimmy Stewart portrayed a former district
attorney, turned country lawyer who takes on a murder case in “Anatomy of a
Murder.” An army officer is accused of killing a man who raped his wife, played
by Lee Remick. The hot-shot prosecutor called in from the attorney general’s
office is played by George C. Scott.

The courtroom scenes are entertaining, but a bit
unrealistic. Stewart’s argument about the underlying rape that invokes a
metaphor of the “core of the apple” is worth rewinding and watching again. The
movie’s judge is not an actor but rather a lawyer, Joseph N. Welch, who rose to
fame challenging Senator McCarthy during his communist witch-hunt by bellowing,
“Senator, have you no decency.”

“Judgement at Nuremberg” was released in 1961. The
film was directed by Stanley Kramer, who teamed up with the film’s star Spencer
Tracy in another courtroom drama, “Inherit the Wind.” Maximilian Schell won an
Academy Award for portraying a defense attorney and Marlene Dietrich also
appears — the only common actor in my top five — as the wife of an executed
Nazi general.

The film centers on a phase of the Nuremberg war
trials, dealing with the prosecution of German judges after World War II. The
judges, the most prominent portrayed by Burt Lancaster, were accused of crimes
against humanity for acquiescing to atrocities committed by Hitler and the
Nazis.

Last, but certainly not least, is Harper Lee’s
Pulitzer Prize winning novel adapted for the silver-screen — “To Kill a
Mockingbird.” Gregory Peck won an Academy Award for portraying Atticus Finch.
The novel and movie are set in 1930s Alabama. Finch is cajoled by the county
judge into representing Tom Robinson, a black man, accused of raping a white
woman, a capital crime in Alabama and much of the south at the time.

The movie is told through the eyes of Finch’s
tomboyish daughter, Scout. The movie tells a compelling story of race and class
in the early 20th-century South. Scout’s simple but poignant action to diffuse
a racist mob outside the county jail — set on lynching Robinson — is as
riveting today as it was more than 50 years ago.

Grab some popcorn and your favorite throw and slip
away into the wonderfully suspenseful world of courtroom noir.

Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was
released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter at @MatthewTMangino.

Thursday, December 21, 2017

None of the newsmaker nominations, drawn from names
suggested by The Crime Report staff and contributors, captured a majority of this year’s
reader votes, reflecting perhaps the large number of potential candidates— or
maybe the fact that we were on the wrong track entirely, as a few readers
complained.

But the plurality of votes went to special
counsel Robert Mueller, and the # MeToo Movement, who were each tied
at 40 percent. Former TCR contributor Matthew Mangino summed up for many why
Mueller stood out in the year: “Without twitter, talk shows or press
conferences, (he) is making a lot of noise, methodically sifting through the
remnants of a campaign bent on winning at any cost.”

The comments supporting the collective choice of the
participants in the social media campaign, underscore the reasons why many also
chose the sexual misconduct story as a landmark development in 2017. The
campaign took off in October, when actress Alyssa
Milano encouraged spreading the
phrase, tweeting that, “If all the women who have been sexually harassed or
assaulted wrote ‘Me too’ as a status, we might give people a sense of the
magnitude of the problem.”

Wednesday, December 20, 2017

Allies of President Donald Trump are orchestrating a
relentless stream of attacks on the credibility and integrity of Special
Prosecutor Robert Mueller and his probe of Russian meddling in the 2016
election. The president insists he’s not going to fire special counsel Robert
Mueller, reports Politico. In the last week, Mueller’s investigators have been
accused of bias against Trump and of violating criminal procedure to get
documents related to his transition.

The purpose of the onslaught, say people close to the White
House, is to sow public doubt about Mueller and his prosecutors in advance of
criminal trials and to give the president political cover if he wants to start
issuing pardons to any current or former aides swept up in the Russia
scandal, Politico reports.

“It is definitely a smarter strategy than outright firing of
Mueller, because that is likely to create a firestorm,” said Elizabeth de la
Vega, a federal prosecutor in San Francisco. “It is also entirely consistent
with Trump’s modus operandi because he is surprisingly non-confrontational,
preferring to be manipulative and, frankly, sneaky.”

The latest complaints against Mueller are a sharp escalation
from earlier this year, when Trump and his allies questioned Mueller’s hiring
of prosecutors who had predominantly donated to Democrats, including
President Obama and Hillary Clinton. While Trump told reporters Sunday that he
wasn’t considering firing Mueller, he said about the special counsel’s methods
for obtaining his transition team’s emails, “It’s not looking good. It’s
quite sad to see that. My people are very upset about it. I can’t imagine
there’s anything on them, frankly, because as we said, there’s no collusion.”

Tuesday, December 19, 2017

Jeffrey Bellin a professor at William &
Mary Law School writes in the USA Today, it's illegal to eliminate jurors
solely on the basis of race.

But a recent appellate court decision shows how
easy it is to circumvent the rule meant to ensure a fair and
balanced jury, which is a cornerstone of the American justice
system.

The Connecticut Supreme Court ruling in Connecticut
v. Holmes — the appeal of a Connecticut murder case that
ultimately landed a black man in prison after a potential African-American
juror was eliminated — should alarm anyone who cares about democracy.

During jury selection in the original case,
"W.T.," who was African American and being interviewed by both the
prosecution and the defense as a potential juror, expressed concerns about law
enforcement in answer to questions posed by the prosecutor.

"Some things are not fair," W.T. said. He also
stated that “sometimes . . . when I see the police in back of me, I wonder, you
know, if I’m going to be stopped.”

But W.T. also emphasized that he would follow the law and
"judge (the case) by the facts."

Still, the prosecutor eliminated W.T. The state explained
that the elimination was "race-neutral" and expressed concern about
the fact that W.T.'s family members "have been convicted and have
served time. ... If we had a Caucasian who was in the same situation,"
they would also have eliminated him from the jury, the state
said.

But I suspect few people who read W.T.'s full
statement would have agreed with the prosecutor's decision. W.T. comes across
as a thoughtful, candid person, the kind of person we want
on juries.

As Connecticut appellate Judge Douglas Lavine noted in his
concurring opinion, the views W.T. expressed were “by no means radical or
unreasonable. On the contrary, they appear to be logical, fact-based, and
understandable.”

But attorneys have a limited number of chances
(that number varies by state) to remove potential jurors, for
any reason at all, and with no explanation given. And until
1986, those reasons could have included race. But the Batson rule,
named after the Supreme
Court decision, was intended to change all of that.

Defendants can use the rule to challenge the elimination of
a juror if they think the prosecutor's choice was based on race. And
in this case, the defendant did.

For the Batson challenge to have worked, the
defendant had to show that the prosecutor made the decision
based primarily on race and with the intention to discriminate — something
that's difficult to prove when prosecutors can easily use reasons related to
race, that are deemed "race-neutral," to eliminate jurors.

The state claiming that a Caucasian juror would
have been eliminated for expressing the same concerns about police sounds
good but likely wouldn't happen. That level of police fear and
discrimination is tied much more closely to the black experience in America.

The trial judge in the original case upheld
W.T.'s elimination, stating that the prosecutor's decision was
"race-neutral."

The appellate court also upheld the ruling.

The Batson challenge may have changed procedures,
but September's Connecticut v.
Holmes appellate ruling shows that the results are still the
same — prosecutors who want to eliminate black jurors can do so in a way
that's frequently incontestable.

Some of
these laws significantly expanded the availability of relief, while others
involved relatively minor changes to existing laws.

• Most of the new laws involved either restrictions on
public access to records or limits on employer inquiries into criminal history.
A few states enacted administratively enforceable standards for consideration
of criminal history in employment and licensing.

• Important new record-sealing schemes were enacted in
Illinois, Montana and New York, and nine other states either relaxed
eligibility requirements or otherwise supplemented their existing sealing or
expungement authorities to make relief more broadly available at an earlier
date. Of these nine, the most ambitious reforms were enacted by Nevada, which
was one of several states that created a presumption in favor of relief for
eligible persons.

• Seven states enacted substantial revisions to their
juvenile expungement and sealing laws in 2017, some of which require courts to
order relief automatically after a brief waiting period. • Ten states enacted
state-wide “ban-the-box” laws limiting inquiries into criminal records by
public employers at preliminary stages of the hiring process. California,
Connecticut and Vermont extended these limits to private employers as well.

• In California and Nevada, restrictions on
application-stage inquiries are part of a broader nondiscrimination scheme that
prohibits consideration of certain kinds of criminal records, and establishes
standards for individualized determinations in all other cases. Both states
provide additional procedural protections.

• While reforms are moving at a fast pace, there is no
consensus about the most effective way to avoid or mitigate the adverse effects
of a criminal record, and very little relevant empirical research.

Sunday, December 17, 2017

Dr. Bennet Omalu of NFL concussion fame, announced his resignation as San Joaquin County’s chief medical examiner. Omalu’s colleague Susan Parson also resigned. In California the sheriff also serves as the coroner. Under Sheriff Steve Moore, they said, the county has failed to adequately investigate deaths in the county.

Hands chopped off bodies; corpses left to deteriorate;
doctors pressured to classify officer-involved deaths as accidents rather than
homicides: The two pathologists have been documenting events inside the
Sheriff-Coroner’s operation for months. The pair publicly released more than
100 pages of memos this week detailing their allegations, in addition to
sending them to the San Joaquin County Board of Supervisors and the county
district attorney in a push for a broader investigation.

“The sheriff does
whatever he feels like doing as the coroner, in total disregard of bioethics,
standards of practice of medicine and the generally accepted principles of
medicine,” Omalu wrote in a memo dated Aug. 22.

Omalu is a nationally recognized forensic pathologist best
known for his work on concussion-related brain injuries sustained by many
football players. He is also a volunteer associate clinical professor at the
University of California, Davis. His work was turned into the 2015 film
“Concussion,” starring Will Smith as Omalu.

“The sheriff is interfering with the doctors’ ability to do
their job and he is trying to influence their decisions,” said Patricia
Hernandez, the union representative for both Omalu and Parson, who declined to
be interviewed. “I would call it rogue mismanagement.”

San Joaquin County Sheriff’s office public information
officer Dave Konecny did not return a call for comment. Moore posted a
statement on Facebook on Nov. 28 that said he takes “my job extremely
seriously.”

“As Coroner, the law requires me to make the final
determination in the manner of death of each case processed here at the
Office,” Moore wrote. “I want to make it clear that at no time did I attempt to
control or influence (Parson’s) professional judgment and conclusions.”

Saturday, December 16, 2017

Fifty years ago the U.S. Supreme Court made a pretty simple
decision -- juveniles have rights. In 1967, the high court made a decision that we take for
granted today. The court ruled that a juvenile accused of a crime must be
afforded due process. Those are the fundamental rights that protect us from
government overreach--such as the right to be notified of charges; the right to
confront witnesses; the right against self-incrimination; and, the right to
counsel.
Prior to 1967, those rights were not available to juveniles accused of a crime.
Then one day in 1964, 15-year-old Jerry Gault made a lewd prank phone call to
his neighbor. The neighbor called the police and Gault was arrested.
A hearing was held the next day in an Arizona courtroom. There was no recording
of the hearing. Gault’s neighbor didn’t show up, and no witnesses testified. He
was not given a copy of the charges, and the court didn’t inform him of the
charges he faced. He did not have an attorney because juveniles were not
provided an attorney in Arizona at the time.
Gault returned to court the following week. Like the first hearing, the
neighbor who notified the police was not present and no record was made of the
proceedings. A report was filed by the probation office accusing Gault of
making a lewd phone call. He did not get an opportunity to present any evidence
or have a trial on the charge. At the end of the hearing, the judge sentenced
Gault to a juvenile detention facility until he reached the age of 21.
Juveniles were not given a right to appeal in Arizona at this time, so Gault’s
parents filed a court action alleging that there was no legal authority to hold
their son. Known as writ of habeas corpus, the action is appropriate where an
individual is being detained without sufficient authority.
The case ultimately made its way to the U.S. Supreme Court. The high court was
clear-- the Fourth Amendment is not for adults only.
The Supreme Court reasoned that when a juvenile is adjudicated delinquent and
deprived of freedom, due process requirements should attach. Indeed, the Court
acknowledged that the gravity of Gault’s sentence turned on his being a
juvenile, not an adult. The Court pointed out, had Gault committed the same
offense when he was 18 or older “he would have been sentenced to a punishment
of a $50 fine or a maximum of two months in jail.”
The Court rejected the paternalistic view of juvenile proceedings in order to
provide fairness and protection under the U.S. Constitution to juveniles who
faced the real possibility of extended detention.
In Re: Gault is a landmark Supreme Court decision for two important reasons.
First, it prevented courts form hiding behind the idea that a juvenile hearing
was about punishment-- rather than rehabilitation--and therefore, juveniles
need not be protected from constitutional violations.
Second, it created the mentality that if a juvenile is old enough for rights
she is old enough for stripes. As a result, it became easier to treat juveniles
as adults for serious and repeated criminal activity.
Those changes over the last 25 years have landed many juvenile offenders in
adult jails and prisons. However, the Supreme Court has begun to focus
attention on eliminating or dramatically reducing the most severe punishment
imposed on juveniles.
The tide is beginning to turn. In the time since Gault, the Supreme Court
removed the death penalty for anyone 15 or under, then outlawed the death
penalty for all juveniles. The high court also did away with life in prison
without parole for any non-homicide offense and mandatory life without parole
for juveniles.

Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino

Friday, December 15, 2017

Last month, the Pennsylvania Supreme Court made a
significant decision with regard to whether the interaction between a motorist
and a police officer, with overhead emergency lights activated, is a mere
encounter or an investigative detention. More to the point, is the motorist
free to leave or is he being detained by the police?

The question also encompasses the safety of the public as
well as the police officers who encounter vehicles. By activating overhead
emergency lights behind a stopped vehicle, the driver is alerted that there is
a law enforcement officer behind him and passing motorists are alerted that a
police officer and a stopped vehicle are alongside the road.

The U.S. Supreme Court has consistently held that police
officers do not violate the Fourth Amendment by merely approaching an
individual in a public place and asking the individual questions or requesting
identification.

In Terry v. Ohio, 392 U.S. 1 (1968), the U.S. Supreme
Court held that the Fourth Amendment prohibition against unreasonable
search and seizure is not violated when a police officer stops a suspect
on the street and frisks him without probable cause to arrest. The Terrycourt
created a new degree of suspicion, more than a hunch but less than probable
cause. After Terry, if a police officer has a “reasonable suspicion” that
a suspect has committed, is committing, or is about to commit a crime or may be
armed—the officer can detain, question and frisk the suspect.

The Pennsylvania Supreme Court recently took on the issue of
an investigative detention involving a motor vehicle in Commonwealth v.
Livingstone, No. 11 WAP 2016. The appellant, Victoria Livingstone, sought the
suppression of evidence gathered during an interaction she had with a
Pennsylvania state trooper along a busy interstate that led to her conviction
of a DUI (driving under the influence).

Livingstone was stopped on the side of the road at
approximately 9:30 p.m. on June 14, 2013, when a trooper observed her car and
pulled alongside to see if she needed assistance. When the trooper attempted to
engage Livingstone, she returned a “100-mile
stare” and exhibited slurred speech and glassy eyes, wrote Ben Seal of The
Legal Intelligencer.

The trooper moved his vehicle to the front of Livingstone’s
and asked her a few questions. The trooper observed that she slurred her
speech, cried, was confused, repeated herself and was unable to follow
directions.

After failing a field sobriety test, the trooper placed
Livingstone under arrest.

Livingstone’s motion to suppress alleged that the
interaction between her and the trooper was an investigative detention without
reasonable suspicion or probable cause. Once the trooper activated his car’s
emergency lights he began an investigative detention.

The trial court denied her motion finding the interaction
was a “mere encounter.” She was found guilty of all charges and appealed. The
Superior Court agreed with the trial court and an appeal to the Pennsylvania
Supreme Court followed.

In distinguishing a mere encounter from an investigative
detention a trial court dealing with a motion to suppress must consider all the
circumstances surrounding the encounter between the police and the individual.
The Supreme Court crafted a reasonable person standard in Commonwealth v.
Lewis, 636 A.2d 619 (1994). Would a reasonable person feel as though she could
decline an officer’s request?

A mere encounter can be any formal or informal interaction
between an officer and a person. The hallmark of a mere encounter is that it
carries no official compulsion to stop or respond.

In contrast, an investigative detention carries an official
compulsion to stop and respond, but the detention is temporary, unless it
results in the formation of probable cause for arrest, and does not possess the
coercive conditions consistent with a formal arrest. Since an investigative
stop has elements of official compulsion it requires reasonable suspicion of
unlawful activity.

In further contrast, a custodial detention occurs when the
nature, duration and conditions of an investigative detention become so
coercive as to be, practically speaking, the functional equivalent of an
arrest.

A look back at the development of the law in this area is
instructive and provides a glimpse into the significance of the Livingstone decision.

In Commonwealth v. Johonoson, 844 2.d 556 (2004), a
state trooper observed a slow-moving vehicle traveling with flashing hazard
lights on a rural road at 3 a.m. Without using his turn signal, the driver
pulled his vehicle off to the side the of road, at which point the officer
followed behind. The trooper activated his overhead emergency lights, and
pulled behind the vehicle. When the trooper approached the driver he
immediately noticed signs of intoxication, and subsequently arrested the driver
for DUI.

Johonoson filed a motion to suppress the evidence of his
intoxication, arguing that the activation of the officer’s overhead emergency
lights would have made a reasonable person in his position believe he was not
free to leave and, therefore, he was subject to an investigatory detention.

The trial court denied the motion and the Superior Court
affirmed the trial court’s decision reasoning, “By pulling over to the side of
the road at 3 in the morning on a rural road, after driving slowly with his
hazard lights on, appellant should have had reason to expect that a police
officer would pull over and attempt to render aid.”

The Superior Court reached a similar conclusion in Commonwealth
v. Conte, 931 A.2d 690 (2007). An officer received a dispatch regarding a
disabled vehicle on the shoulder of a road. When the officer arrived at the
scene, he pulled behind the vehicle and activated his overhead emergency lights
to alert passing vehicles of his presence.

The officer approached the driver who had already exited the
vehicle, and asked him if he needed help. The driver told the officer he had a
flat tire. After noticing signs of intoxication while speaking with the driver,
the officer decided to administer field sobriety tests, the driver failed and
submitted to a blood test resulting in a blood alcohol reading of .23 percent.

The driver was arrested and convicted. An appeal followed.

The Superior Court affirmed the trial court’s denial of
Conte’s motion to suppress. Relying on the rationale in Johonoson, the
court found that “the evidence introduced at the suppression hearing shows that
a reasonable person in Conte’s position would have understood the police
officer’s arrival as an act of official assistance, and not as the start of an
investigative detention.”

In Commonwealth v. Kendall, 976 A.2d 503 (2009),
Gregory Kendall appealed his Franklin County conviction for driving under the
influence. On Sept. 17, 2007, two state troopers followed Kendall’s car for
approximately two or three minutes at a distance of 50 to 100 feet, the driver
activated his turn signal and pulled off to the shoulder of the road. The road
had a narrow shoulder and the driver pulled the car partially onto a property
that bordered the road.

The troopers pulled behind Kendall’s vehicle. After running
the license plate one of the troopers activated the overhead lights and exited
the patrol car and approached the vehicle. The trooper asked Kendall why he
suddenly pulled over, and Kendall replied that it was to let the patrol car
pass.

The trooper smelled alcohol and Kendall failed a field
sobriety test. A blood test revealed Kendall had a blood alcohol content of .14
percent.

Kendall filed a motion to suppress alleging the stop was an
investigative detention and not supported by reasonable suspicion. The Superior
Court did not agree and ruled that the level of interaction between Kendall and
the troopers began as a mere encounter and therefore no reasonable suspicion
was required.

Finally, in 2009, the Pennsylvania Superior Court, en banc,
decided Commonwealth v. Au, 986 A.2d 864 (2009). A police officer on
routine patrol after midnight observed an automobile parked in the lot of a
local business, which had closed several hours earlier.

The officer decided to see if the vehicle’s occupants needed
assistance as it was unusual to see a car in the lot at such a late hour.
Without activating his emergency lights, the officer parked his vehicle so that
his headlights illuminated the passenger side of the vehicle. The car was
filled with young people and the officer asked for identification.

The court found that an officer’s request for identification
from a group of teenagers in a vehicle constituted an investigative detention
unsupported by reasonable suspicion.

The Pennsylvania Supreme Court reversed the Au majority’s
holding (Commonwealth v. Au, 42 A.3d 1002 (2012)), and adopted the
analysis of the U.S. Supreme Court in Hiibel v. Sixth Judicial District
Court, 542 U.S.177(2004), in which the high court held that statutes requiring
suspects to disclose their names during police investigations did not violate
the Fourth Amendment. In Au the Pennsylvania Supreme Court held that
“a request for identification is not to be regarded as escalatory in terms of
the coercive aspects of a police-citizen encounter.”

What distinguished Au from Livingstone is
that the officer in Au did not activate his overhead emergency
lights. Had he activated his emergency lights the stop may have been an
investigative detention regardless of the request of identification.

Contrary to decisions reviewed above, the Pennsylvania
Supreme Court has made it clear in Livingstone that the activation of
a police car’s overhead emergency lights is enough to initiate an investigative
detention. A motorist who drives away from a police car with lights illuminated
may be convicted of fleeing and alluding, 75 Pa.C.S.A. 3733.

“The fact that motorists risk being charged with violations
of the motor vehicle code … supports our conclusion that a reasonable person in
the appellant’s shoes would not have felt free to leave,”

Therefore, Livingstone was seized and subjected to an
investigative detention without any degree of suspicion of criminal activity.

Will this decision put motorists and police officers in
danger or jeopardize viable prosecutions? If activating emergency lights
initiates an investigative detention, will police officers avoid using their
overhead lights when checking on a motorist? The safety of motorists on the
roadway and the police officer would be compromised.

On the other hand, activating overhead lights without
reasonable suspicion may make evidence of criminal activity seized by police
subject to suppression.

In light of Livingstone, Pennsylvania appellate courts
will no doubt be asked to review the parameters of reasonable suspicion. Soon
sitting along the highway in a stopped vehicle may be enough to trigger
reasonable suspicion.

The Pennsylvania Supreme Court also used the facts in Livingstone to
examine the public servant “exception” to the requirement for a warrant
pursuant to the community caretaker doctrine. A more thorough review of those
23 pages of legal analysis will be left for another column.

Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George. His book “The Executioner’s Toll,” 2010 was
released by McFarland & Company. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino).

Thursday, December 14, 2017

Allegheny County District Attorney Steve Zappela wrote recently in the Pittsburgh Post-Gazette: Last year, the state Legislature passed a law that offers
the chance to seal old, minor criminal records for people who stay out of
trouble. While that was a good start to help people rebuild their lives and
reputations, there is a next step that should be taken.

The law now requires Pennsylvanians who stay out of trouble
for 10 years to go through a time-consuming and cumbersome process to seal
their records, a process that includes a court hearing and the payment of a
filing fee.

The General Assembly can ease that burden by passing the
Clean Slate Act. The act would make the sealing of these records automatic
after 10 years for nonviolent offenders who stay out of trouble. The courts and
police agencies would work together to accurately and automatically seal these
criminal records within two months of an offender’s eligibility. Those who
qualify would simply be notified by mail that their records have been sealed.
They would not have to go through a hearing, pay a fee or hire a lawyer.

Criminal background checks are necessary and serve an
important function. Employers, landlords and schools should know if there is
something in a candidate’s past that makes that person a danger or liability.
The Clean Slate Act would not inhibit background checks. What it would do is
allow nonviolent offenders who remain crime-free for a decade to apply for
housing, jobs and schools, knowing that a long-ago minor crime will not stand
in the way of their applications being considered.

Wednesday, December 13, 2017

Two FBI agents assigned to the investigation into alleged
collusion between President Trump’s campaign and Russia exchanged text messages
referring to the future president as an “idiot,” according to copies of
messages turned over to Congress by the Justice Department, reported Politico. Special Counsel Robert Mueller removed agent Peter Strzok from the
probe “immediately” after learning of the texts in late July, the department
said. The other agent, Lisa Page, had ended her assignment to Mueller’s office.
After Page commented on a Bernie Sanders bumper sticker, Strzok
replied, “He’s an idiot like Trump. Figure they cancel each other out.”

The messages, which turned up during a Justice Department
inspector general investigation into political influence on investigative
decisions during the campaign, are fueling Republican calls for a second
special counsel to investigate Mueller’s operation.

Tuesday, December 12, 2017

The Associated Press
projected that Doug Jones, a former U.S. attorney, defeated Roy Moore, a controversial
former judge, in a major upset. Moore faced allegations that, decades earlier,
he had pursued romantic relationships with girls in their teens when he was in his
30s.

Jones’s victory in the
special election is a seismic defeat for the GOP, President Trump and Trump’s
former chief strategist, Stephen K. Bannon. The result will narrow the
Republican majority in the Senate to 51 to 49 — and will place that majority in
greater peril during next year’s midterm elections.

Monday, December 11, 2017

For five hours last week, Republican lawmakers delivered a reckless and sustained attack on the FBI and the special counsel, reported the Washington Post. They amplified President Trump’s claim that the FBI’s “reputation
is in Tatters — worst in History” and that Robert S. Mueller III’s Russia
probe, which has already secured guilty pleas from two Trump campaign officials
and the indictments of two more, is part of a system that is “rigged,” “phony,”
“dishonest” and using a “double standard.”

Shamefully, Republicans on the House Judiciary Committee
launched an all-out assault on the special counsel and the FBI — choosing to
protect Trump at the cost of Americans’ faith in the justice system and the
rule of law.

Rep. Steve Chabot (R-Ohio) repeatedly charged that the FBI and Mueller have a
“shocking” anti-Trump bias.

Rep. Jim Jordan (R-Ohio) said he has a “hunch” that “pro-Clinton, anti-Trump bias”
at the FBI was behind a secret “warrant to spy on Americans associated with the
Trump campaign.”

Rep. Matt Gaetz (R-Fla.) called former FBI director James B.
Comey an “egomaniac rogue” and speculated that the FBI paid for the
“dossier” on Trump’s activities in Russia.

Rep. Ron DeSantis (R-Fla.) speculated that anti-Trump bias
led the FBI to conclude that Russia interfered in the U.S. election, and
he threatened Wray: “I think you’re walking into a
contempt of Congress.”

This is calumny. Mueller is a longtime Republican who was
appointed FBI director by George W. Bush. He was named special counsel by Rod
J. Rosenstein, also a Republican, who was appointed by Trump himself to be
deputy attorney general. Comey, a Republican who served in Bush’s Justice
Department, made political contributions to John McCain, Mitt
Romney and other Republicans. Wray, a Republican who also gave to GOP
candidates, was appointed by Trump.

Sunday, December 10, 2017

If Roy Moore narrowly defeats Doug Jones in this week’s
Senate race, he may have an obscure 1903 Supreme Court case to thank, reported Newsweek.

The case, Giles v. Harris , upheld Alabama’s
successful campaign to prevent African Americans from casting ballots despite
the constitutional guarantee of the right for black people to vote.

Its ramifications can be felt to this day: about 15 percent
of otherwise qualified African American residents of Alabama have been barred
from voting in recent elections.

In a state where 90 percent of eligible blacks vote
Democratic, that can make the difference in this week’s closely watched Senate
election.

Alabama’s unequal approach to voting can be traced to its
1901 constitution, drawn up to prevent black citizens from voting.

The president of the convention that drafted the
constitution, John B. Knox, declared at the beginning of the meeting: “And what
is it that we want to do? Why it is within the limits imposed by the Federal
Constitution, to establish white supremacy in this State.”

Saturday, December 9, 2017

Following a recent terrorist attack in Manhattan that killed
eight and injured 12 President Donald Trump attacked the criminal justice
system. He suggested that the criminal justice system was partially at fault
for terrorist acts.

“We need quick justice, and we need strong justice -- much
quicker and much stronger than we have right now. Because what we have right
now is a joke, and it’s a laughingstock,” said Trump.

Last weekend President Trump tweeted, “After years of
[F.B.I. Director] Comey, with the phony and dishonest Clinton investigation
(and more), running the FBI, its reputation is in Tatters - worst in History! .
. .”

Not to mention the president’s recent attacks against
Special Counsel Robert Mueller and his team of investigators as “very bad and
conflicted people” and his characterization of the Russia probe as a “witch
hunt.”

Those comments from the president of the United States
should alarm anyone who believes in the rule of law.

Bob Bauer, White House Counsel to President Obama, wrote
recently on LawFare, “the president is successfully bringing the legal process
into the discredited conspiratorial ranks of the ‘deep state.’ He is
specifically stirring up suspicion of Robert Mueller, but his broadsides have a
far wider focus. He has upbraided the whole system--DOJ, the FBI and the
courts.”

The foundation of American democracy rests on the rule of
law. Freedom endures with the notion that all men and women are on equal
footing before the courts, and that our government of checks and balances
protects us from corrupt institutions.

The faith that we invest in our leaders is always subject to
legitimate scrutiny. However, baseless attacks on our institutions shake our
faith in democracy.

In 2016, Gallup released a poll that showed only 23 percent
of Americans have either “a great deal” or “quite a lot” of confidence in the
criminal justice system. Such lack of confidence is unfortunate and concerning.
The poll predates the current attacks on justice-related institutions.

Jason Brennan a professor at Georgetown University wrote in
Time, ”[M]ost voters have no incentive to be well-informed about politics, or
to correct their misinformed opinions. They have no incentive to think
rationally about politics or to process information in a reasonable way. They
have every incentive to indulge their biases and prejudices.”

The recipe of demagogic attacks on political institutions,
and failure of voters to correct misinformation, is dangerous. Don’t take it
from me. This week, former President Barack Obama warned against staying
complacent in the face of rising nativism--citing the rise of Hitler as an
example of what can happen if democracy is not defended--reports Crain’s
Chicago Business.

“We have to tend to this garden of democracy or else things
could fall apart quickly,” Obama told an audience at the Economic Club of
Chicago. “That’s what happened in Germany in the 1930s, which despite the
democracy of the Weimar Republic and centuries of high-level cultural and
scientific achievements, Adolf Hitler rose to dominate.”

Obama continued, “Sixty million people died...So, you’ve got
to pay attention. And vote.”

Whether it was attacking U.S. District Judge Gonzalo Curiel
for his ethnicity or the “so-called judges’ that overruled his travel ban or
his comments after the sanctuary cities decision, “This case is yet one more
example of egregious overreach by a single, unelected district judge,”
President Trump has displayed little respect for the rule of law.

In 1947, U.S. Supreme Court Justice Felix Frankfurter wrote,
“There can be no free society without law administered through an independent
judiciary. If one man can be allowed to determine for himself what is law,
every man can. That means first chaos, then tyranny.”

Judges, prosecutors and investigators should be free from
pressure imposed by a political party, a powerful person, a private interest,
or popular opinion.

Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.

Friday, December 8, 2017

Two and a half years after millions saw a cellphone video of
Michael Slager gunning down Walter Scott, the 20-year prison sentence imposed will be etched into history as one of the most significant for
an American police officer involved in a fatal shooting, reported the Post and Courier.

Slager was patrolling one of North Charleston’s most
hardened communities on April 4, 2015 when he stopped Scott’s car for a broken
brake light. The police had long used minor traffic stops to check on residents
and look for greater crimes afoot.

This stop was ordinary until Scott, 50, jumped out and ran.
Slager gave chase and tried to stop him with a Taser.

But the officer said Scott fought him and grabbed the stun
gun, turning the weapon against him. As they rose from the ground, Slager
said he feared what Scott might do. He pulled his pistol and fired.

But bystander Feidin Santana’s video showed the Taser
bouncing behind the officer, though it offered no clear view of who had been
holding it. Scott is running away at the first gunshot and is still running at
the eighth, which brought him down. Five of the bullets had hit him from
behind.

Officers are rarely arrested in shootings, a product of how
much leeway the law gives them in justifying deadly force. Even more seldom are
they convicted and sentenced to lengthy prison terms, which was apparent when
Slager's state murder trial last year ended with a hung jury.

Thursday, December 7, 2017

In August 1952, The
New York Times published the following dire statement in an editorial: The
public now had evidence in statistics “solemnly guaranteed as accurate and
complete by the Police Department, that there is definite reason for concern
about the trend violence is taking in New York.”

Over the years, things got bloodier, more or less steadily,
until 1990. The city had 2,245 murders that year, WROTE Jim Dwyer in The New York Times.

This week, the police department released statistics that showed
murders have declined so much in New York City that killings are likely to be
fewer than 300 for 2017. That is less than most years in the 1950s, when there
were fewer people living in the city.

A mere number, the homicide statistic is of the utmost
importance for what it counts, death by violence. But it is also a historic
milestone for what it does not count: lives not lost. It marks a long change,
one whose importance would be unmistakable for anyone familiar with the city.

Well, not everyone. You can, of course, always manage to
find one New Yorker who sees things upside down. In this case, the presidential
candidate Donald J. Trump managed that trick during a campaign debate last
year.

“Murders are up, all right,” Mr. Trump said. “You check it.”

Wrong then, wrong now. That may not qualify as startling
news, but it is welcome. As the city has grown, it has become safer and safer.

The cause of the (nonexistent) crime increase, Mr. Trump had
said, was that “a judge, who was a very-against-police judge,” acting in
concert with Mayor Bill de Blasio, had ended the use of stop-and-frisk.

Candidate Trump got the murder trend completely wrong, but
sometimes people stumble on facts when rushing to get to a larger truth.

In this case, Mr. Trump was trying to get at an even bigger
untruth.

More than 4 million innocent people
were stopped and frisked between 2002 and 2012. Most were under the
age of 25. The vast majority were black or Latino. Under pressure from a
lawsuit, the practice was scaled back beginning in 2012 — not by the order of a
judge, not by Mayor de Blasio, but by his predecessor, Michael R. Bloomberg.

Today, the police still stop and search people, but the
number of such encounters has dropped by more than 98 percent since its peak in
2011 — down to 12,404 in 2016, and about the same pace this year. Six years
ago, 685,724 were stopped and searched — 605,328 of whom had done nothing
wrong, and many thousands who had done nothing worse than carry marijuana.

Along the way, a federal judge did say that the city’s
wholesale stop-and-frisk practices violated the Constitution. But contrary to
the cries of Mr. Bloomberg, the police commissioner and some editorial writers,
further curtailing this approach did not make the city more dangerous. In fact,
the opposite happened. That is unambiguously great news.

Wednesday, December 6, 2017

NFL player Malcolm Jenkins
wrote recently for NBCNews about juvenile life without parole.Here are excerpts: In 2012, the Supreme
Court ruled that life sentences without parole should only be given to
juveniles in the rarest of circumstances. Last year, it ruled that those
individuals currently serving life sentences without parole should have their
cases reviewed. Currently, more than 2,100 people who were sentenced as
children are eligible to have their sentences reviewed and earn a second
chance. Approximately 300 of these people are from the city of Philadelphia
alone.

In its decision, the Supreme Court said that juvenile life
without parole, where kids are sentenced to literally die in prison, should
only be given to teens found to be “irreparably corrupt.” But in reality,
according to the Fair Punishment Project, the “irreparably corrupt” child is
a myth. We have to stop locking up kids and throwing away the key. According
to human rights groups, America is the only country that sentences kids to
life without parole.

The infuriating irony here is that the kids who have
received life without parole sentences are, in many ways, the young people who
needed our help the most. According to study conducted by
the Sentencing Project, 79% of this population witnessed violence in their
homes growing up, 40% were enrolled in special education classes, nearly half experienced
physical abuse, and three-quarters of the girls had experienced sexual abuse.

America failed them once. Today, these kids deserve a second
chance. Contrary to the super-predator
rhetoric utilized by politicians in the past to justify locking up
kids for life, adolescents
really are different from adults — in almost every way. Their brains
are underdeveloped, they struggle with judgment, they are susceptible to peer
pressure.

For too long, we have depicted our youth, especially our
black youth, as fully developed adults who are a lost cause. But they can
change. These are not the
soulless “super-predators” the media scared its readers with in the
70s and 80s. These are children. Studies show that even those accused of the
most serious crimes age out of crime.

Tuesday, December 5, 2017

President Donald Trump’s personal lawyer is arguing that, as
the nominal head of federal law enforcement, the president is legally unable to
obstruct justice. However, it wasn’t long ago that another senior Trump lawyer:
Attorney General Jeff Sessions argued the exact opposite, reports Politico.

In 1999, Sessions – then an Alabama senator – laid out an
impassioned case for President Bill Clinton to be removed from office based on
the argument that Clinton obstructed justice amid the investigation into his
affair with White House intern Monica Lewinsky.

Sessions isn’t alone. More than 40 current GOP members of
Congress voted for the impeachment or removalof Clinton from office for obstruction of justice.
They include Senate Majority Leader Mitch McConnell – who mounted his own
passionate appeal to remove Clinton from office for obstruction of justice –
Senate Judiciary Committee Chairman Chuck Grassley and Senate Intelligence
Committee Chairman Richard Burr, who was a House member at the time.

In all, 17 sitting senators supported the obstruction of
justice charge against Clinton in 1998 and 1999.

“The chief law officer of the land, whose oath of office
calls on him to preserve, protect and defend the Constitution, crossed the line
and failed to defend the law, and, in fact, attacked the law and the rights of
a fellow citizen,” Sessions said during Clinton’s trial in the Senate, two
months after he was impeached by the House. “Under our Constitution, equal
justice requires that he forfeit his office.”

Trump’s personal lawyer John Dowd argued in an interview with Axios on Monday that the “president
cannot obstruct justice because he is the chief law enforcement officer under
[the Constitution’s Article II] and has every right to express his view of any
case.”

Monday, December 4, 2017

This blog usually deals with crime and punishment. Today, we’ll
focus on an effort to do away with a law that has landed a lot of people in
jail over the years. It is strange, sports betting is illegal with a few
exceptions (Nevada), yet newspapers around the country, television sports show
and websites talk about “the line.” How
much a given team must win or lose by to win a bet.

New Jersey Gov. Chris Christie gambled big-time five years
ago when he signed a law authorizing sports betting at casinos and racetracks
and dared anyone to "try to stop us," reported the USA Today.

That's exactly what college and professional sports leagues
and the federal government have done, thanks to a succession of court rulings
upholding a 25-year-old federal law that prohibits gambling on sports
outside Nevada and three other states with small sports lotteries.

But Christie has one last shot before leaving office next
month. Today the Supreme
Court will hear oral arguments in his case and could decide, as
many court-watchers predict, that the ban violates states' rights. Such a
ruling could open the floodgates to sports betting in any state willing to
regulate it.

According to the new National Law Journal Supreme Court
Brief, the American Gaming Association estimates that Americans bet $150
billion on sports annually, and only 3 percent of those bets are legal. If the
Supreme Court strikes down the federal law that prohibits sports betting in
most places, the industry will only grow, with sports betting spreading fast
among revenue-thirsty states.

The dynamics of the case make for interesting bedfellows, as Bloomberg’s Greg
Stohr notes: “All it took to bring Donald Trump and the National Football
League together was New Jersey Governor Chris Christie and his Supreme Court
bid to legalize sports gambling. The NFL, a target of the president’s Twitter
ire over national anthem protests, is banding together with the administration
to fight the outgoing governor.”

Oh, if you'd like to bet on which justice asks the first question you can find the odds here.

Sunday, December 3, 2017

It has become an annual ritual in Louisiana: Nearly every
winter, the state’s public defenders run out of money, reported The Marshall Project. Last year, 33
of the state’s 42 local indigent defense offices cut staff or placed
thousands of poor defendants on a wait list. The New Orleans public defender’s
office began
refusing clients, leaving hundreds to sit in jail without representation.

This year, there is another wait list. At least 11 Louisiana
defendants facing the death penalty — including five who have already been
indicted — have no defense team and may not have one until new money becomes
available in July. The list is likely to grow. In Louisiana, all first-degree
murder defendants face execution unless a prosecutor explicitly decides
otherwise.

The latest crunch in Louisiana emerged from a law passed
last year to try to patch up the system. The
legislation, signed by Democratic Gov. John Bel Edwards in June 2016,
required Louisiana’s state-level indigent defense agency to spend more on the
overloaded local defenders — the ones who handle regular felony and misdemeanor
cases — by spending less on lawyers in death penalty cases. The law
successfully delivered about $5 million in additional cash to indigent defense
offices around the state, including a $1.5 million boost for New Orleans, which
has since ended its hiring freeze and reduced its wait list to essentially
zero.

But funding for capital defenders was cut to $5.5 million
from $8.5 million in just a year.

“They robbed Peter to pay Paul,” said Jay Dixon, chief
defender for the Louisiana Public Defender Board, which is scheduled to hold a
statewide meeting Thursday to discuss the waitlisted capital defendants. “We’re
still in crisis; it’s just a different crisis. And now they can’t shift any
more money around, so we could be facing an even greater crisis next year.”

Louisiana is the only state in the nation whose public
defenders are funded primarily by traffic tickets, supplemented by a modest
state contribution. In part because of changes in police practices, ticket
revenue has declined since 2010, causing the annual budget gap

Saturday, December 2, 2017

Chief Justice John Roberts summed up the issue in this
week’s blockbuster Fourth Amendment argument before the U.S. Supreme Court with
this simple comment, “The whole question is whether the information is
accessible to the government” without a warrant.

The Fourth Amendment requires the government to obtain a
search warrant pursuant to a standard known as “probable cause” before
obtaining an individual’s private information.

The Fourth Amendment protects the right of people to be
“secure in their persons, houses, papers and effects, against unreasonable
searches and seizures.” Where does electronic data fall when considering
“houses, papers and effects?” Do the police have to get a search warrant in
order to obtain cellphone location information that is routinely collected and
stored by wireless providers?

The case before the Supreme Court this week, Carpenter v.
United States, involved a series of armed robberies at Radio Shacks in Michigan
and Ohio to, ironically, get cellphones.

The police arrested several men, one of whom confessed that
he was part of a group that had robbed nine stores within the previous year.
The suspect identified Timothy Carpenter. At Carpenter’s trial, prosecutors
used data from his cellphone provider to put him at or near the scene of each
of the robberies.

The Supreme Court has, in recent years, ruled in favor of
the defense on major cases concerning how criminal law applies to new
technology. In 2012, the court held that a warrant is required to place a GPS
tracking device on a vehicle. In 2014, the court ruled that police need a
warrant to search a cellphone that is seized during an arrest.

In Carpenter’s case, the police obtained an order of court
under the Stored Communications Act, which does not require a showing of
probable cause. The law authorizes release of records when there are “specific
and articulable facts showing that there are reasonable grounds to believe” the
records are “are relevant and material to an ongoing criminal investigation.”

A search warrant would have required probable cause, a more
stringent standard than provided under the Stored Communications Act.

During this week’s argument, Justice Sonia Sotomayor noted
that cell phones have become an “appendage” for people in the modern era,
reported CNN. “Most Americans, I still think, want to avoid Big Brother,” she
said. “They want to avoid the concept that government will be able to see and
locate you anywhere you are at any point in time.”

The concern does not stop with the collection of location
data. The capacity to store an enormous amount of data has long term
implications for individual privacy. Data is routinely collected on
web-surfing, shopping, dating, dining, social-interests and travel --
documenting nearly every act of a cellphone user. This new era of technology
demands new protections against search and seizure of personal digital
property.

Are the courts best suited to make policy on the protection
of digital privacy? Courts address issues on a case-by-case basis, it may take
years for the Courts to develop a coherent body of law on the protection of
digital privacy, suggests David Von Drehle in the Washington Post.

Legislative bodies are best equipped to develop policy on
this issue. If done properly, and not as a knee-jerk reaction, Congress or individual
state legislatures can methodically study the issue and come up with a
comprehensive policy for dealing with privacy in this new age.

Some of the legislative work is already underway. A
bipartisan group of senators recently introduced the USA Rights Act to overhaul
aspects of the National Security Agency warrantless internet surveillance
program.

The bill, led by Senators Ron Wyden (D) and Rand Paul (R),
would end the warrantless “back door” searches of American calls, emails, texts
and other communications. This is a start, but it only scratches the surface
when it comes to delineating the protections that should be afforded digital
privacy in the 21st century.

Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.